JUSTIFIABLE AND UNJUSTIFIABLE LITIGATIONIf a member
knows that, under the law, his client has no lien on or valid claim to a certain parcel of
land, it is improper for him to file a lis pendens merely to cloud title to the land in
question.

In connection with a suit on an open account brought by a member for a client, a lis
pendens was filed. The pleadings in the case assert no claim of a lien, and no attachment
of any kind was issued. Does this action violate the Canons of Ethics?

Opinion

This question is difficult for two reasons: (1) The committee cannot decide the scope
and extent of the lis pendens statute; and, in order to render a helpful opinion, it must
be assumed that the attorney knew that, under the law, his client had no lien on the land
in question or had no valid claim to the land in question and that he filed lis pendens
merely to cloud title (which may or may not be the actual situation inquired about); and
(2) Texas, unfortunately, has not yet adopted that portion of the A.B.A. Canon No. 15
which in effect defines the advocates duty to client as a duty to do everything
which is permitted by law but to act wholly within the law.

Based on the arbitrary factual assumption made above, it appears that the attorney
stepped outside the bounds of law by committing the intentional tort of abuse of process.
See Prosser, Torts pp 667-669, Sec. 100 (2nd Ed.) (the committee does not pass
on this question of law). If so, his conduct would be unethical under A.B.A. Canon 15. And
see 39 Tex. L. Rev. 391. Such conduct should be unethical in Texas though, as stated, the
Texas canons have no provisions corresponding to the above mentioned portion of A.B.A.
Canon 15. Texas Canon 27 provides that "a member
must decline to conduct a civil cause or to make a defense when convinced that it is
intended merely to harass, or to injure the opposite party, or to work oppression or
wrong." If this can be interpreted as meaning that the lawyer, in conducting
litigation, must act within the bounds of the law (and the committee believes it can), the
conduct in question violates Texas Canon 27 and thus does not conform to the minimum
requirements of professional responsibility. But, even if the conduct in question violates
no canon and cannot well be said to be prohibited by the general provisions of Art. XII,
Sec. 8, State Bar Rules, and therefore could not subject the lawyer to disciplinary
action, such conduct does not measure up to the general standards of professional
responsibility with which all Texas lawyers should comply, although not forced to do so.
(9-0)